12 Or. 49 | Or. | 1885
It is alleged in the complaint in this action that the appellant was a corporation, organized by the laws of the State of Minnesota, having agents at the city of Portland, in the State of Oregon, and at the town of Ainsworth, Washington Territory, and at other points in said State and Territory; that on and prior to the 28th day of January, 1884, said appellant was a common carrier for hire, engaged in the express business
The appellant, by its answer, denied that on the 28th day of January, 1884, it had an office at the city of Portland, or at the town of Ainsworth; denied that it had any knowledge or information sufficient to form a belief that said money was the property of the respondent, or that it received said money to be transported for respondent, or that he was to pay any compensation for the transportation thereof, or that it did transport it for him; denied that it was notified by Ladd & Tilton when it received the money, or ever knew that the money, or any part thereof, was the property of respondent, or was to be transported
“ That it is a corporation duly incorporated under the laws of the State of Minnesota, and that its business and powers are stated in its articles of incorporation, and that, under its articles of incorporation, it is authorized to receive money for transportation from the consignor, and transport it over its routes, and deliver it to its consignee, and to collect reasonable charges for transporting the same.
“That under its articles of incorporation it has adopted rules and regulations for the government of its agents in the conduct of its business; that said rules and regulations direct its agents to require of consignors, before the delivery of the money, that the consignor cause the same to be properly and securely tied, sealed, and fastened, and the amount of the money contained therein indorsed on the outside of the package, and the package addressed to the consignee, with the place where the same is to be delivered plainly marked thereon. And said rules and regulations further direct the said agents to deliver the said package to the consignee named and indorsed thereon; that said rules and regulations are the usual and customary rules and regulations adopted by all express companies engaged in business like said defendant; and that on the 28th day of January, 1884, said Ladd & Tilton, bankers mentioned in said plaintiff’s complaint, and said plaintiff, had full knowledge of said rules and regulations, and usage and custom.
“That said agents, under said rules and regulations, and said usage and custom, had no authority to receive said package of money consigned to the defendant for transportation.
“That on said 28th day of January, A. D. 1884, the said Ladd & Tilton delivered to the defendant’s special agents at Portland the said sum of $18,784.27, secured and consigned as stated in plaintiff’s complaint, and the said special agents of the 'defendant then and there, acting on behalf of said defendant, entered into a contract with said Ladd & Tilton to receive the said package from the said Ladd & Tilton so consigned, and transport the same to said town of Ainsworth. And that in said contract the said Ladd & Tilton and the said defendant further agreed that the said defendant should be liable for said money 'as a forwarder only. That said contract, in so far as it related to the receiving of said package consigned to the Northern Pacific Express Company, was void. And that said defendant thereafter, on said 28th day of January, A. D. 1884, and-while said package was still in the city of Portland, and before the delivery thereof to the express messenger, and while said contract was entirely executory, mutually agreed with said Ladd & Tilton to and did modify said contract so as to consign said package of money and said money to E. E.. Johnson. That said E. E. Johnson in said contract was named and called ‘ Agent Northern Pacific Express Company.’ That said E. E. Johnson was, on the 28th and 29th days of January, A. D. 1884, the agent of plaintiff and acting for and on behalf of plaintiff, and authorized by plaintiff to receive said package of money.
“That under said contract as modified, the said defendant, within a reasonable time after the delivery to it of said package, forwarded the same to the said town of Ainsworth, and on the 29th day of January, A. D. 1884, at the said town of Ainsworth, delivered the said package of money and the said $18,784.28 to the said consignee, E. E. Johnson; and' the said E. E. Johnson then and there received said package of money,
The respondent, in reply to the new matter set forth in the answer, denied the allegations thereof that were at variance with those set out in the complaint, and all the matters in the said answer which were in avoidance of his alleged cause of action. The issues were tried by the said Circuit Court, and a jury duly impaneled, and the said jury returned a verdict in favor of the respondent and against the appellant for the amount of said money, and the interest thereon from the time the respondent claimed it should have been delivered, from which judgment the appeal herein was taken.
The appellant’s counsel insist that the said judgment should be reversed, upon the grounds:—
First, that the allegations and proofs show that it performed its contract and duty in regard to the said package of money; and second, that the Circuit Court committed error in its rulings on the admission of evidence, and in its instructions to the jur7*
It appears from the pleadings and proofs, we think, beyond question, that at the time the money is alleged to have been delivered to the appellant, it was a corporation engaged in the express business between the places alleged in the complaint; that the said package of money was duly delivered to it at Portland for transportation, and that it belonged to the respondent; that the money was never delivered to the respondent. The business relating to the affair had its inception in the sending of drafts by Donnell, Clark & Laribie, bankers at Deer Lodge, Montana Territory, to Ladd & Tilton, at Portland, Oregon. Said drafts were accompanied by a letter of instruction, in the following words: —
“Deer Lodge, M. T., Jan. 24, 1884.
“Messrs. Ladd & Tilton, Portland, Oregon—Dear Sirs: Please find inclosed our No. A. 3,089, G. 0. Sanborn, Local
“We guaranty signature of William Bennett and know that his power atty. is correct and on file in our county records.
“ Besp’ly,
“ Donnell, Clank & Laribie.
“ P. S. We attach certified copy power atty.”
The drafts were received by Ladd & Tilton, who delivered the said balance, less charges, to the appellant for transportation, and which constitutes the said package of money, and received from the agent in charge at Portland a receipt therefor, of which the following is the substance:—
“Northern Pacific Expness Company.
“ N. P. Express Co.
“ Deceived of Ladd & Tilton the property hereinafter described, which we undertake to forward to the nearest point of destination ‘reached by this company. .... In no event shall this company be liable for any loss or damage, unless the claim thereof shall be presented to them in writing at-this office, within ninety days after this date, in a statement to which this receipt shall be annexed. The party accepting this receipt hereby agrees to the conditions herein contained: —
Date. Desceipeion. Weight. Value oe Aai’t. Addeessed TO. Destination. Received BY.
Deo. 31, 1 Bag. D. H. S 5 00 First Nat. Bank. Seattle, W. T. Cooper.
Jan. 8, 1 Sealed Bag. Coll. 5,000 00 J. A. Perkins. Colfax, W. T. Rufus Ball.
Jan. 28, 1 Pk’g. Coll. 13,784 27 N. P. Ex. Co., John McGowan. Ainsworth, W. T. Ball.
Feb. 13, 1 Bag. Collect. 1,000 00 O. R. & N. | Co. Whites, N. G. R.R. Cooper.
It appears also that on the date of the delivery of the package to appellant, Ladd & Tilton sent the following letter concerning the same: —
“ Agent Northern Pacific Company, Ainsworth,* W. T.—Dear Sib : At the request of Donnell, Clark & Laribie, Deer Lodge, W. T., we send you to-day, by your company’s hands, currency, $18,784.27, for account and use of Nelson Bennett.
“Yours, truly,
[Signed.] “ Laud ' & Tilton.”
It also appears from the deposition of one E. E. Johnson, who was at the time, and had been for some months previously, the appellant’s local agent at Ainsworth, Washington Territory, that some time between the 21st and 23d of January, 1884, he received from the respondent a letter, either addressed to “ E. E. Johnson,” “ Mr. Johnson,” or plain agent, the witness could not state which, of which the following is the substance: — “Have ordered money sent from Portland; when received, deliver on order of H. D. Sims, when countersigned by T. B. Taylor.
[Signed.] “ Nelson Bennett.”
'The witness testified further as follows:—
“ After the receipt of that letter I received a package of money from Portland, addressed ‘ Agent Northern Pacific Express Company, Ainsworth, W. T.’ That package contained $18,-784.27. On the receipt of that package of money I opened it and counted it. I receipted for it on the express company’s books. After the receipt of that money I put it in the office safe. I put all of it there. After putting it in the safe, I took out a thousand dollars, carried it around in my pocket an hour or two, and then put it back again. I think I received that money on the 28th or 29th of January, 1884; can’t tell which certainly; think it was the morning of the 29th. It is hard to tell how long that money remained in the safe. It was gone on the morning of the 31st. It was taken out of the safe on the night of the 30th, or the morning of the 31st of January. I supposed I closed up the safe on the night after the 30th, and the money was in the safe. At the time I opened the safe on the morning of the 31st, the money was not there. When I opened it, it had been stolen. The day after the money was received
(Counsel for defendant here exhibited to witness a paper which the witness said was, and identified as, a copy of the letter from Ladd & Tilton.)
“ When I received the package of money in question it is hard to tell how many persons were present. They were coming in and going out all the time; Probably from ten to fifteen or twenty. While the money was being counted at Ainsworth, at the time of its receipt, January 29th, and after it was put in the safe, the attention of several persons, was di’awn to it, and the matter was talked about at the office and in town. I put the money in the same safe which at that time was used by the agent of the company, and which I suppose has since been used for the preservation of money and other valuables shipped by the Northern Pacific Express Company to and from that point. I think it was 1 or 2 o’clock in the day when I took the thousand dollars out of the safe, and took it out in town. I put it back in an hour or two. I exhibited it in two saloons that I know of. I signed the receipt with my name in full immediately after the way bill was entered in the receipt book, and probably before the money had all been counted, as was my usual custom in signing receipts for packages billed to the Northern Pacific Express Company. I have an impression that the letters from Mr. Bennett were addressed to Mr. Johnson, either ‘ Agent N. P. Ex. Co.’ or ‘ Agent N. P. B. W. Co.’ I know his usual custom was to address me as Mr. Johnson in speaking to me.”
It also appeared in evidence, from the testimony of H. D. Sims, that in pursuance of instructions received from respondent, in whose employ he was at that time, he called at the express office at Ainsworth on the 31st day of January, 1884, for the purpose of getting the money for respondent; that he asked E. E.‘Johnson, the agent, if he Had any money for Nelson Bennett, to which the agent replied, “yes, plenty of it.” The agent then excused himself and went out, saying that he would be back in a minute or two. "Witness waited fifteen or twenty
It appeared from the said deposition of the said E. E. Johnson that he was also agent for the Northern Pacific Bailway Company during the time he was agent for the appellant, and that the appellant was a contractor in building the railroad for said railway company. Johnson also testified, under objection made by appellant, which will hereafter be noticed, that in the receipt of the said package of money he was acting as agent for the appellant; and he further testified that at no time during the month of January, 1884, was he acting as agent for the respondent. The respondent gave in evidence a circular signed by W. J. Footner, after giving evidence that said Footner was superintendent of the appellant, and that it was within the scope of his business as such superintendent, among other things, to see to the safe delivery of packages of money and other valuables intrusted to the company, and to use all necessary means, including the offering of rewards, for th'fi recovery of money or packages lost while in the company’s charge, and that in relation to the money in question he wrote and signed in his official capacity, and had posted in conspicuous places, the said
“Northern Pacific Express Co.
“Office of the General Superintendent, St. Paul, Minn.
“$1,000 Reward. • .
“The Northern Pacific Express Co. will pay the sum of $1,000 to any person who will give information sufficient to secure the
ARREST AND CONVICTION
of the party or parties guilty of the recent larceny at Ainsworth, W. T., of a
PACKAGE OF MONEY,
alleged to contain $18,784.27, belonging to Nelson Bennett; and will also pay in addition thereto ten per cent on all the said money that shall be recovered and paid over to said Nelson Bennett. % ' . "W. J. Eootner,
“ General Superintendent.”
It also appeared in evidence that after the said package of money had been delivered to the agent of the appellant for transportation, addressed and directed as before mentioned, and while the same was in the possession of appellant at Portland, Oregon, the said address was amended by the insertion of the word “agent” before the word “northern”; so that it made the said address read “ Agent Northern Pacific Express Co., • Ainsworth, W. T.” It was made a material question in the court below as to how this change occurred. It was contended on the part of the appellant that it resulted from a modification of the original contract to transport the said package of money, whereby the said Ladd & Tilton consigned it to the said E. E. Johnson. That, in fact, - was the appellant’s main defense in the action, anft the proof of it depended, to a great extent, upon the testimony of Mr. Browning, the assistant superintendent of the appellant at Portland, and Mr. Tedford, on one side, and Mr. T. B. Wilcox, the paying teller of Ladd & Tilton, on
The package of money having been delivered to the appellant at Portland, addressed to the appellant at Ainsworth, with the knowledge upon the part of .its agents that it belonged to respondent, presents a question as to appellant’s duty, considered from that standpoint. It was insisted upon the argument that the appellant, under, those circumstances, was itself the consignee, and that its duty as common carrier of the money was performed when it arrived at Ainsworth, and was delivered to its agent Johnson. The claim that the appellant could have been both carrier and consignee is, in my judgment, more fanciful than real. It would be difficult even to imagine how a party could deliver an article to himself. A consignment of
In the case above referred to the railway relieved itself from that character of liability, not by delivering the goods to itself, but by depositing them in its warehouse after the failure of the consignee to be present at the depot, ready to receive them upon their arrival. The goods, consisting of two boxes of merchandise, were ordered by the consignee and shipped by the railroad company, under an agreement, fairly inferable from the circumstances, that the company would transport them to its station No. 6 on its line, and deliver them there to the consignee, if he were present when they, arrived; otherwise, would deposit them in its warehouse. The consignee was not present, and the company placed the goods in its warehouse, built, used, and maintained for the purpose, and of which fact the consignee of the goods had full knowledge when he ordered them sent. 'The case is. similar to that of Thomas v. Boston & P. R. Co. 10 Met. 472. It belongs to that class of cases where the obligation of a carrier is affected by an established custom and usage. (Ang. Car. 4th ed. § 301.)
Under these circumstances, it was obviously the duty of the > appellant not only to carry the package to Ainsworth, but to deliver it personally to the respondent, or upon his order, if the parties could be found; and its duty as common carrier was not performed until reasonable efforts were made by it to inform those parties that the package had arrived and was waiting to be delivered. The case is entirely unlike that of the shipment of goods by a carrier under a known usage and course of business, that they are to be deposited in the carrier’s warehouse, or under a contract that the carrier is to hold them for the
It is unnecessary to determine what the rights of the parties would have been if the appellant had not known who the money belonged to, and had not been informed to whom it was to be delivered; in other words, if Ladd & Tilton had merely deposited the package with the appellant, addressed in the manner it was, and had not been informed as to who it belonged to, nor been instructed by the owner of it in regard to its delivery. Such was not the case, and the transaction must be viewed in the light of its surroundings. In that view of it, we cannot regard the appellant as the mere depositary of the money at any time prior to the time it was stolen. The delivery of the money to appellant’s agent, Johnson, and taking his receipt,, therefor, did not constitute a delivery that relieved the appellant of its duty in the premises as common carrier. If the jury had found under the evidence that there was expressly or impliedly an agreement that the appellant should deliver the money to Johnson as agent of respondent, our holding would be different. And the authorities seem to hold that, where the goods are consigned to the owner in care of an agent of the carrier, a delivery to such agent will constitute a complete delivery, and exonerate the carrier. But such determination must proceed upon the ground of a tacit understanding between the parties that the carrier’s agent’was to become the agent of the owner for the receipt of the goods. But, unfortunately for the appellant in this case, the jury made no such finding; on the contrary, they, in effect, found that Johnson was not the agent of the respondent for any such purpose, which completely put an end to that branch of the appellant’s defense.
The défense that the respondant failed when he made the
The other defense, that the respondent should have been at the express office at Ainsworth when the money arrived, ready to receive it, could not be sustained Avitliout proof that such AA'as the contract) and the fact that the package'was directed as before mentioned, in view of the other facts, did not establish snch proof, whatever might have been the effect if it had not
Upon the facts of the case, including those necessarily found by the jury, we conclude that the law is with the respondent, unless there was error in the admission of evidence, or in the instructions the court gave to the jury.
' The first exception taken by the appellant was to the ruling of the court upon the motion for a nonsuit. The motion was made after the respondent had submitted certain of his evidence tending to prove facts alleged in his complaint, and the court overruled it. Something was said upon the argument that all the proofs in the case tending to establish the respondent’s alleged cause of action had not been given when he rested his case and the motion for a nonsuit was made, but as I understand the rule, that fact is entirely unimportant. If the respondent, when he rested, had not proved a cause sufficient to be submitted to the jury, yet the appellant, after the motion was overruled, went into his defense, and the respondent then supplied his proofs so as to render them sufficient, the appellate court will not* review the ruling upon the motion. If the appellant desired to raise the question of the sufficiency of the respondent’s proofs at the time he first rested his case, he should
The next exception was to the ruling of the court below upon the objection to the admission in evidence of the circular notice, signed by Footner, offering the reward. We think that evidence was competent. It was an admission of the appellant, not one of its agents; an act from which could be inferred an acknowledgment upon the part of the company that it was liable for the loss of th'e money. That character of evidence is admissible. (Fox v. Adams’ Exp. Co. 116 Mass. 292.) It mat- , tered not when the circular was issued. It tended to show an acknowledged liability upon the part of the appellant, and was properly received in evidence for that purpose. The act was not conclusive. It was open to explanation, like the adjustment of a loss on a policy of insurance, but, nevertheless, a competent admission to be given in proof.
The next exception was to the ruling of the court upon the objection to the question asked the witness E. E. Johnson, which question was as follows: “ In what capacity, and for whom, were you acting in the receipt of the package of money in question?” He answered eethat he was acting for the Northern Pacific Express Co.” ' The ground of the objection was that it referred a question of law to- the witness; that it called for an answer involving a construction of the contract entered into between the parties, in view of the circumstances under which the package was sent and received by him. But it could not have been so understood by the counsel who put the question, nor by the court who permitted the answer to be given, nor would the witness have been likely to have attempted to answer it if he had supposed that it covered as broad grounds as that. He evidently understood that the inquiry only related to his immediate business connection with the parties at the
The exception to the ruling of the court upon the objection of appellant’s counsel to the question asked the witness Wilcox, as to whether he had received any letter from Donnell, Clark & Laribie, showing their disapproval of his action in the matter of sending the money, is claimed to have been well taken; also the exception to the ruling of the court, upon the objection of said counsel to the question asked the witness H. B. Sims, as to what he did when he arrived at the office of the appellant at Ainsworth, in obedience to certain instructions referred to in the question; but I am unable to understand how the answer to the former question could have affected the verdict of the jury. It
We have also examined the instructions asked to be given to the jury by the appellant’s counsel and refused by the court, and we find that they contain no more than the counsel’s theory of the case, which they have been endeavoring to establish as a defense. Our view of the matter, embraced in the proposed instructions, has been fully expressed in our consideration of the grounds of the defense, and it is unnecessary to restate it, further than to reaffirm that it is the duty of a common carrier
In this case, the question as to the understanding of the parties upon that subject was properly submitted to the jury, and their verdict is decisive of it. The judgment is therefore affirmed.